The respondents had not convinced us that it was the
clear intention of the Act to admit only Muslims with sufficient knowledge of
Islamic law as a peguam syarie.

For the aforesaid reasons, weallow the appeal by the appellant, set aside the
orders of the learned judge and grant the declaration sought as in paragraph
1.1 and the consequential orders as in paragraphs 1.3 and 1.4 of the
appellant’s application. In view of the abovesaid decision, it would not be
necessary for us to decide whether Rule 10 is unconstitutional or ultra vires
Article 5 and/or Article 10(1) of the Federal Constitution.

The
appellant, a non-Muslim advocate and solicitor, had applied to the Peguam
Syarie Committee, a body established by the first respondent (`the Majlis')
under the Peguam Syarie Rules 1993 (`the Rules'), for admission as a Peguam
Syarie. The application, purportedly, was made pursuant to s. 59(1) of the
Administration of Islamic Law (Federal Territories) Act 1993 (`the Act')
which provides that "Subject to sub-s. (2), the Majlis may admit any
person having sufficient knowledge of Islamic law as Peguam Syarie". On
9 September 2009, the Committee, and hence the Majlis, refused to process the
application on the ground that under r. 10 of the Rules, only Muslims could
be admitted as Peguam Syarie. It was not in dispute that r. 10, which was
enacted pursuant to the powers granted to the Majlis by s. 59(2) of the Act,
provides that "A person may be admitted to be a Peguam Syarie if he is a
Muslim ...". Be that as it may, the appellant subsequently moved the
High Court to review and quash the decision of the Majlis, arguing that r. 10
is inconsistent with s. 59(1) andultra
viresthe Act. The
learned judge, having adverted to the provisions, took the view that the
Majlis was empowered under s. 59(2) to make rules relating to qualification
for admission of persons as Peguam Syarie, including the power to impose a
condition such as housed in r. 10 (the applicant must be a Muslim), and in
the circumstances, dismissed the judicial review application. The appellant
appealed and reiterated the point that under the scheme of s. 59 of the Act,
and r. 10 of the Rules, a person's faith or religion has never been asine qua nonfor admission as a Peguam Syarie.
The respondents retorted that it is a matter of basic pre-requisite that a
Peguam Syarie should be a Muslim, as the Syariah Court has no jurisdiction
over non-Muslims. They further argued that by virtue of the words
"subject to sub-s. (2)" in s. 59(1), s. 59(1) is subservient to s.
59(2) as well as the rules made thereunder. Before the learned justices of
appeal, the primary question that called for determination was whether, upon
the proper constructions of s. 59(1) and (2) of the Act, and r. 10 of the
Rules, the aforesaid impugned condition in r. 10 isultra viress. 59(1) of the Act.

Held
(allowing appeal; declaring r. 10ultra vireswith no
order as to costs)

Per Abu
Samah Nordin JCA delivering the judgment of the court:

(1)Section 59(1) does not delimit
the power of the Majlis to admit any person as a Peguam Syarie only to
Muslims. In the absence of any definition, the words "any person"
in s. 59(1), in their natural meaning, must mean any person regardless of his
religion. There is nothing in the Act to restrict the meaning of the words
"any person" to mean "any Muslim". Thus, under s. 59(1),
any person with sufficient knowledge of Islamic law may, at the discretion of
the Majlis, be admitted as a Peguam Syarie. (para 14)

(2)Under s. 59(1), even being a
Muslimper
seis not
sufficient to be admitted as a Peguam Syarie. He must be a Muslim with
sufficient knowledge of Islamic law. It is not the function of the court to
question why s. 59(1) was drafted as such. However, it is naïve to think that
any non-Muslim is incapable of acquiring sufficient knowledge of Islamic law.
It is common knowledge that Islamic law, as a subject of learning, is not the
monopoly of Muslims. (para 14)

(3)The power of the Majlis to admit
any person having sufficient knowledge of Islamic law as a Peguam Syarie is
conferred by the parent Act itself. The rules made under s. 59(2), on the
other hand, are a form of subsidiary legislation. As subsidiary legislation,
the rules do not stand on equal footing as the parent Act and cannot override
the parent Act. (para 15)

(4)The phrase "subject to
subsection (2)" in s. 59(1) of the Act does not make s. 59(1)
subservient to s. 59(2), as contended. This is because s. 59(2) itself does
not take away or curtail the power of the Majlis to admit "any person
having sufficient knowledge of Islamic law" as a Peguam Syarie. Section
59(2) is merely an enabling provision, which the legislature has conferred on
the Majlis to make rules to regulate the procedure and qualification for
admission of Peguam Syarie. The Majlis cannot, by way of subsidiary
legislation, make rules inconsistent with or contrary to s. 59(1). Rule 10,
which provides that a person may be admitted as a Peguam Syarie if he is a
Muslim, is clearly contrary to s. 59(1) which does not limit the power of the
Majlis to admit a person as a Peguam Syarie to Muslims only. It isultra viress. 59(1) of the 1993 Act. (para 16)

(5)The amendment to s. 59(1) by Act
A931 did not alter the meaning of the words "any person" in s.
59(1) or curtail the power of the Majlis to admit any person having
sufficient knowledge of Islamic law as a Peguam Syarie. The amendment in fact
widens the power of the Majlis to admit a Peguam Syarie. The word
"persons" in the original s. 59(1) had been amended to "any
person" in the new s. 59(1). In addition, a new sub-s. (3) was
introduced to widen the power of the Majlis by allowing it to exempt any
member of the Judicial and Legal Service or any person appointed under s. 3
of the Legal Aid Act 1971 from the provisions of s. 59. This means that this
court's view that the words "any person" in s. 59(1) as including
any person regardless of his religion is not contrary to the whole scheme of
the Act. Simply put, the Act does not close the doors for non-Muslims having
sufficient knowledge of Islamic law to appear in Syariah Court. (paras 17
& 20)

(6)The word "Muslim" has
not been used consistently throughout the Act as a qualification on matters
relating to appointment, admission and membership of a body, committee or
council, or appointment of judges of the Syariah Court. In any case, if the
intention of s. 59 is to admit only Muslims having sufficient knowledge of
Islamic law as Peguam Syarie, it must say so in clear and unequivocal terms.
The duty of the court is to expound the language of the Act in accordance
with settled rules of construction. The court has nothing to do with the
policy of any Act which it is called upon to interpret. (paras 21 & 22)

[1] This is an appeal by the appellant against the
decision of the Kuala Lumpur High Court dismissing her application for
judicial review pursuant to Order 53 of the Rules of the High Court 1980 for
the following reliefs –

1.1 A declaration that that part of Rule 10
of the Peguam Syarie Rules 1993 mandating that only Muslims can be admitted
as ‘Peguam Syarie’ is ultra vires the Administration of Islamic Law (Federal
Territories) Act 1993 (‘the Act’);

1.2 A declaration that that part of Rule 10
of the Peguam Syarie Rules 1993 mandating that only Muslims can be admitted
as ‘Peguam Syarie’ is in contravention of Article 5 and/or Article 10(1)(c)
of the Federal Constitution and is as a consequence void;

1.3 An order of certiorari 5 to quash the decision of the respondent refusing to
process the appellant’s application to be admitted as ‘Peguam Syarie’;

1.4 An order of mandamus to compel the
respondent to receive and process the appellant’s application to be admitted
as ‘Peguam Syarie’ without regard to the fact that the appellant is a
non-Muslim.

[2] Leave to commence judicial review against the first
respondent was granted by the High Court on 14.5.2010. However the learned
High Court judge who heard the substantive application for judicial review
dismissed the appellant’s application without costs on the ground that the
Majlis Agama Islam Wilayah Persekutuan (‘the Majlis’) is empowered under
section 59(2) of the Act to make rules relating to qualification for admission
of persons as Peguam Syarie, including the power to impose a condition that
the applicant must be a Muslim. The opening words in section 59(1) of the Act
which begins with the phase “Subject to subsection (2)” means that the power
of the Majlis to admit any person having sufficient knowledge of Islamic law
must be subject to the rules made under section 5 59(2) of the Act. The
word ‘qualification’, in section 59(2) of the Act is wide enough
to empower the Majlis to impose a condition that a Peguam Syarie must be a
Muslim. The learned judge at paragraphs 17 and 21 of her judgment said:

“17. Whether or not the imposition of the
requirement that a person must be a Muslim is within the power of Majlis must
therefore depend on the meaning of the word qualification used in that section. If the legislature had
intended that knowledge of Islamic Law per se is sufficient then s. 59(1)
would have been enacted to read instead, “The Majlis shall admit any person having sufficient
knowledge of Islamic Law….”. Since the opening words of s. 59(1) begin with “Subject to
subsection (2)”, it is clear that the qualification of a person with sufficient knowledge
of Islamic Law in that s. 59(1) is
subject to the power given to the Majlis in subsection (2). That being the
case, I hold that the Majlis is empowered by virtue of s. 59(2) to regulate
the qualification of a Peguam Syarie”.

21. “The power delegated to the Majlis is
sufficiently wide to enable the Majlis to enact a condition that an applicant
for admission as Peguam Syarie must be a Muslim, in addition to having
sufficient knowledge of Islamic Law”.

[3] Section 59 of the Act provides –

“(1) Subject to subsection (2), the Majlis
may admit any person having sufficient knowledge of Islamic law to be Peguam
Syarie to represent parties in any proceedings before the Syariah Court.

(2) The Majlis may, with the approval of the
Yang di Pertuan Agong, make rules –

(a) To provide for the procedure,
qualifications and fees for the admission of Peguam Syarie, and

(b) To regulate, control and supervise the
conduct of Peguam Syarie”.

The Majlis, in exercise of its powers under
section 59(2) of the Act had in 1993 passed the rules known as Peguam Syarie
Rules 1993.

[4] The appellant, a non-Muslim, applied to the Peguam
Syarie Committee, for admission as a Peguam Syarie. The Peguam Syarie
Committee is established pursuant to Rule 3 of the Peguam Syarie Rules 1993
(‘the Rules’), whose functions are set out in Rule 7, which includes, the
power to conduct the examination of applicants for Peguam Syarie, to admit a
person as a Peguam Syarie and to issue the Peguam Syarie certificate.

[5] On 9.9.2009 the Committee purportedly acting on
behalf of the Majlis decided not to process the appellant’s application on
the sole ground that she is not a Muslim. The letter to the appellant dated
9.9.2009, signed by the Chairman of 10 the Committee states:

[6] The condition that a Peguam Syarie must be a Muslim
is found in Rule 10 of the 1993 Rules which states –

“10. A person may be admitted to be a Peguam
Syarie if he –

(a)
(i) is a Muslim and has passed the final examinations which leads to
the certificate of a bachelor’s degree in Syariah from any university or any
Islamic educational institution recognised by the Government of Malaysia; or

(ii) is a Muslim member of the judicial and
legal service of the Federation; or

(iii) is a Muslim advocate and solicitor
enrolled under the Legal Profession Act 1976; or

(iv) has served as a Syariah Judge or as a
Kathi with any State Government in Malaysia for a period of not less than
seven years;

(b) has attained the age of twenty-one
years;

(c) is of good behaviour and -

(i) has never been convicted in Malaysia or
in any other place of any criminal offence;

(ii) has never been adjudged a bankrupt;

(d) is a Malaysian citizen; and

(e) as an advocate and solicitor, has passed
the Sijil Peguam
Syarie examination”.

[7] It is not in dispute that the appellant had not
passed the examination for the certificate of Peguam Syarie nor being asked
to sit for such examination. But the refusal to process the application was
based solely on the ground that the appellant is not a Muslim and not on the
ground that she had not passed the examination for the certificate of Peguam
Syarie.

[8] The issue before us is whether that part of Rule 10
which imposes a condition that only a Muslim can be admitted and be allowed
to practice as a Peguam Syarie is ultra vires section 59(1) of the Act. This is a matter of
construction of section 59(1) and section 59(2) of the Act. It is not a
question of whether a non-Muslim can, under Syariah law, be admitted as a
Peguam Syarie. It is also not a question of whether the Syariah Court has
jurisdiction over non-Muslims. It is simply a question of whether that
condition in Rule 10 is ultra vires section 59(1) of the Act. The consequential
reliefs in the form of certiorari to quash the decision of the 1st respondent
in refusing to process her application and mandamus to compel the first
respondent to process her application would only be relevant if the appellant
is successful in her application for the declarations.

[9] It must be stressed here that this is not an application to compel the first respondent to admit the appellant as a Peguam Syarie solely on the basis
of her application. She had not sat nor passed the Sijil Peguam Syarie
Examination, a fact which is conceded by learned counsel for the appellant.
An applicant will not be admitted as a Peguam Syarie if he or she had not
passed the Sijil Syarie Examination (see Rule 10(e)).

[10] Learned counsel for the appellant contended that the
condition in Rule 10 that only a Muslim may be admitted as a Peguam Syarie is
ultra vires section 59(1) as that section allows any person with sufficient knowledge
of Islamic law to be admitted as a
Peguam Syarie. A person’s faith or religion is not a sine qua non for admission as a Peguam Syarie under
section 59(1) of the Act.

[11] Dato’ Hj. Sulaiman bin Abdullah, learned counsel for
the first respondent contended that the legislature, in its wisdom, had
delegated the power to the Majlis to make rules regarding the qualification
of a person for admission as a Peguam Syarie as the Majlis is the proper body
entrusted under the Act to advise the Yang Di Pertuan Agong on matters
relating to the religion of Islam. (Section 4(1) of the Act). The words,
“Subject to subsection (2)” in section 59(1) of the Act means that the power
of the Majlis to admit a person as a Peguam Syarie is subject to the rules
made under section 59(2). Such power must be exercised in accordance with
Rule 10 of the Peguam Syarie Rules 1993. It is a basic requirement that a
Peguam Syarie must be a Muslim as the Syariah court has no jurisdiction over
non-Muslims. For instance, the Syariah Court may be confronted with a
jurisdictional issue if a Peguam Syarie, being a non-Muslim, commits contempt
of court. Therefore the court must look at the Act as a whole and adopt a
purposive approach in the interpretation of section 59, consistent with
section 17A of the Interpretation Acts 1948 and 1967.

[12] Learned Senior Federal Counsel, 5 Dr. Arik Sanusi, for the second respondent pointed
out that the words, “Subject to subsection (2)” were introduced into the
current section 59(1) of the Act by Act A931 in 1995. The original section
s.59(1) did not contain the words “Subject to subsection (2)”. The intention
of the amendment was to make it clear that the power of the Majlis to admit a
Peguam Syarie must be exercised in accordance with the rules made under
section 59(2) including the qualification that the applicant must be a
Muslim.

[13] The original section 59 prior to its amendment
reads:

“59. (1) The Majlis may, on payment of the
prescribed fee, admit persons having sufficient knowledge of Islamic Law to
be Peguam Syarie to represent parties in any proceedings
before any Syariah Court.

(2) The Majlis may, with approval of the
Yang di-Pertuan Agong, make rules-

(a) to provide for the procedure,
qualifications and fees for the admission of Peguam Syarie; and

(b) to regulate, control, and supervise the
conduct of Peguam Syarie.

(3) Notwithstanding anything contained in
any other written law, no person other than a Peguam Syarie shall be entitled to appear in any Syariah Court on
behalf of any party to any proceedings before it”.

[14] We had examined the Act in its entirety. In our view
section 59(1) expressly allows the Majlis to admit any person having sufficient
knowledge of Islamic Law to be a Peguam Syarie.
Section 59(1) in its present form does not delimit the power of the Majlis to
admit a person as a Peguam Syarie only to Muslims. In the absence of any
definition, the words “any person” in section 59 (1) in their natural meaning
must mean any person, regardless of his or her religion. There is nothing in
the Act to restrict the meaning of the words “any person” to mean “any
Muslim”. Thus, any person, with sufficient knowledge of Islamic Law may under
section 59(1) be admitted as a Peguam Syarie at the discretion of the Majlis.
Even being a Muslim per se, is not sufficient to be admitted as a Peguam
Syarie. He must be a Muslim with sufficient knowledge of Islamic Law. It is
not the function of the Court to question why section 59(1) was drafted as
such? It is naive to assume that any non-Muslim is incapable of acquiring
sufficient knowledge of Islamic Law. It is common knowledge that Islamic Law,
as a subject of learning is not the monopoly of Muslims.

There is no prohibition for non-Muslims to
acquire knowledge of Islamic law.

[15] Subsection 2 of Section 59of the Act is an
enabling provision, which empowers the Majlis, with the approval of the Yang
di Pertuan Agong, to make rules –

(a) to provide for the procedure,
qualifications and fees for admission of Peguam Syarie, and

(b) to regulate, control and supervise the
conduct of Peguam Syarie.

By definition, the Rules made under section
59(2) are a form of subsidiary legislation (see section 2 of the
Interpretation Acts 1948 and 1967). They do not stand on equal footing as the
parent Act and cannot override the parent Act. The power of the Majlis to
admit any person having sufficient knowledge of Islamic law as a Peguam
Syarie is conferred by the parent Act itself.

[16] The phase, “Subject to subsection (2)” in section
59(1) of the Act does not make section 59(1) subservient to section 59(2), as
contended by the respondents. This is because section 59(2) itself does not
take away or curtail the power of the Majlis to admit any person having sufficient
knowledge of Islamic law as a Peguam Syarie.
Section 59(2) is merely an enabling provision, which the legislature has
conferred on the Majlis to make rules, with the approval of the Yang Di
Pertuan Agong, regulating the procedure and qualification for admission of
Peguam Syarie. The Majlis cannot by way of a subsidiary legislation, make
rules inconsistent with or contrary to section 59(1). In our view Rule 10 of
the Peguam Syarie Rules 1993, which provides that a person may be admitted as
a Peguam Syarie if he is a Muslim is clearly contrary to section 59(1) which
does not limit the power of the Majlis to admit a person as a Peguam Syarie
to Muslims only. It is ultra vires section 59(1) of the Act.

[17] In our view the amendment to section 59(1) by Act
A931 did not alter the meaning of the words “any person” in section 59(1) or
curtail the power of the Majlis to admit any person having sufficient
knowledge of Islamic Law as a Peguam Syarie. The explanatory statement to
clause 4 of the Bill relating to Administration of Islamic Law (Federal
Territories) (Amendment) Act 1995 states,

“4. Clause 4 seeks to substitute section 59 of the Act with a new
section 59 to enable the Majlis to admit Peguam Syarie to represent parties
in proceedings before the Syariah Courts and to exempt certain persons from
the provisions relating to admissionof Peguam Syarie in the
Syariah Courts”.

The explanatory statement is not of much
help. The first part of it is superfluous, as the Majlis had already been
given the power to admit Peguam Syarie under the old section 59(1).

[18] The explanatory statement also makes no reference to
a person’s faith. The amendment in fact widens the power of the Majlis to
admit a Peguam Syarie. The word “persons” in the original section 59(1) had
been amended to “any person”, in the new section 59(1). The old subsection
(3) of section 59 had been amended and renumbered as subsection 4 and a new subsection (3) was introduced. This new subsection 3
widens the power of the Majlis by allowing it to exempt any member of the
Judicial and Legal Service or any person appointed under section 3 of the
Legal Aid Act 1971 from the provisions of section 59. There was no such
provision under the old section 59. Thus, any such person may now appear in
the Syariah Court on behalf of any party, upon being granted the exemption by
the Majlis.

[19] Our view that the words “any person” in section
59(1) include any person regardless of his religion is not contrary to the
whole scheme of the Act. The Act does not close the doors for non-Muslims
having sufficient knowledge of Islamic Law to appear in Syariah Court.
Section 59(3) gives the Majlis the discretion to exempt –

(i)
any member of the Judicial and Legal Service; or

(ii) any person appointed under section 3 of
the Legal Aid Act 1971;

from the provision of section 59 itself.
This means that any member of the Judicial and Legal Service or any person
appointed under section 3 of the Legal Aid Act 1971 may appear in Syariah
Court if granted the exemption.

[20] It is a known fact that there are non-Muslims
members in the Judicial and Legal Service. Similarly, a person appointed
under section 3 of the Legal Aid Act 1971 need not be a Muslim. These two
categories of persons need not have to be a Peguam Syarie in order to appear
in the Syariah Court. The only restriction is that they have to obtain the
necessary exemption from the Majlis.

[21] We note that the word ‘Muslim’ has not been used
consistently throughout the Act as a qualification on matters relating to
appointment, admission of or membership of a body, committee, council or
appointment of judges of the Syariah Court. For instance, members of the
Majlis (section 10) and members of the Syariah Appeal Court (section 42) must
be Muslims. The word Muslim is conspicuously absent in section 41(2)(b)(ii)
and section 43(2)(b)(ii). A person who is a citizen and learned in Islamic
Law may be appointed as a Chief Syariah Judge under section 41(2)(b)(ii). A
person who is a citizen and learned in Islamic Law may be appointed as a
judge of the Syariah High Court under section 43(2)(b)(ii). Section 59(1)
does not use the word “Muslim” but uses the words “any person”. Section 32,
which provides for the appointment of Mufti and Deputy Mufti does not use the
word “Muslim” but uses the words “fit and proper persons”. That was the way
the Act was drafted and passed by the Legislature. Why did the legislature
use the words “any person” instead of the words “any Muslim” or words to that
effect in section 59(1) of the Act if the intention and purpose of section 59
is to admit only Muslims having sufficient knowledge of Islamic law as a
Peguam Syarie? If that was the intention and purpose of the Act, it must say
so in clear and unequivocal terms.

[22] The rule of construction is “to intend the
legislature to have meant what they have actually expressed “(R v Banbury (inhabitants) 1834) 1 Ad & El 136, per Lord Parker at
page 142) and that “the intention of Parliament must be deduced from the
language used” (Capper v Baldwin [1965] 2 QB 53 at 61. The Supreme Court (as
it then was) in NKM Holding Sdn
Bhd v Pan Malaysia Wood Bhd [1987] 1 MLJ 39 reminded the judges that they are not legislators. The
duty of the court is to expound the language of the Act in accordance with
the settled rules of construction. The court has nothing to do with the
policy of any Act, which it may be called upon to interpret. That may be a
matter for private judgment. The onus of showing that the words do not mean
what they say lies heavily on the party who alleges it. He must, as Parke B
stressed in Becke v Smith [1936] 2 M&W. 191, 195, advance
something which clearly shows that the grammatical construction would be
repugnant to the intention of the Act or lead to some manifest absurdity. The
respondents had not convinced us that it was the clear intention of the Act
to admit only Muslims with sufficient knowledge of Islamic law as a peguam
syarie.

[23] For the aforesaid reasons, weallow the appeal by the appellant, set aside the
orders of the learned judge and grant the declaration sought as in paragraph
1.1 and the consequential orders as in paragraphs 1.3 and 1.4 of the
appellant’s application. In view of the abovesaid decision, it would not be
necessary for us to decide whether Rule 10 is unconstitutional or ultra vires
Article 5 and/or Article 10(1) of the Federal Constitution.

[22] The rule of construction is “to intend the
legislature to have meant what they have actually expressed “(R v Banbury (inhabitants) 1834) 1 Ad & El 136, per Lord Parker at
page 142) and that “the intention of Parliament must be deduced from the
language used” (Capper v Baldwin [1965] 2 QB 53 at 61. The Supreme Court (as it
then was) in NKM Holding Sdn Bhd
v Pan Malaysia Wood Bhd [1987] 1 MLJ 39 reminded
the judges that they are not legislators. The duty of the court is to expound
the language of the Act in accordance with the settled rules of construction.
The court has nothing to do with the policy of any Act, which it may be called
upon to interpret. That may be a matter for private judgment. The onus of
showing that the words do not mean what they say lies heavily on the party who
alleges it. He must, as Parke B stressed in Becke v Smith [1936] 2 M&W. 191, 195, advance something which
clearly shows that the grammatical construction would be repugnant to the
intention of the Act or lead to some manifest absurdity. The respondents had
not convinced us that it was the clear intention of the Act to admit only
Muslims with sufficient knowledge of Islamic law as a peguam syarie.